Citation Nr: 1452976
Decision Date: 12/02/14 Archive Date: 12/10/14
DOCKET NO. 12-19 275 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for disability of the left elbow.
2. Entitlement to service connection for disability of the left wrist.
3. Entitlement to service connection for disability of the cervical spine, to include cervical strain.
4. Entitlement to service connection for disability of the low back, to include lumbosacral strain and degenerative arthritis.
5. Entitlement to service connection for bilateral hip disability.
6. Entitlement to service connection for chronic obstructive pulmonary disease (COPD).
REPRESENTATION
Appellant represented by: Travis Sayre, Attorney
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. A. Hoffman, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1971 to August 1974.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
The Board has not only reviewed the Veteran's physical claims file, but also his electronic claims file to ensure a total review of the evidence.
The Veteran has waived RO consideration of the additional evidence he submitted in October 2014.
The issues of entitlement to service connection for disabilities of the left elbow, left wrist, and COPD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Disability of the low back, to include lumbosacral strain and degenerative arthritis, was not shown to be present during active military service, did not manifest to a compensable degree for many years after service, and has not otherwise been shown to be causally or etiologically related to an in-service event, injury, or disease.
2. Bilateral hip disability was not shown to be present during active military service, did not manifest to a compensable degree until many years after service, and has not otherwise been shown to be causally or etiologically related to an in-service event, injury, or disease.
3. The Veteran does not currently have a cervical spine disability, to include cervical strain, and has not had such a disability at any time during the pendency of this claim.
CONCLUSIONS OF LAW
1. A disability of the low back, to include lumbosacral strain and degenerative arthritis, was not incurred in or aggravated by service, and such incurrence may not be presumed. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2014).
2. Bilateral hip disability was not incurred in or aggravated by service, and such incurrence may not be presumed. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310.
3. A cervical spine disability, to include cervical strain, was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
A. Duty to Notify
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA issued a VCAA letter in March 2012, prior to the initial unfavorable RO adjudication in May 2012. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability ratings and effective dates are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.
B. Duty to Assist
The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file.
In his February 2012 claim the Veteran stated that he had been treated at VA Medical Center (VAMC) Beckley, West Virginia, and had not been treated by others outside VA system. These VA records are in the claims file, as well as records from VAMC Richmond, Virginia, and no other relevant records have been identified as outstanding.
The Board, thus, finds VA has satisfied its duty to assist with the procurement of relevant records.
The Veteran has provided testimony at two hearings, an RO hearing in June 2013, and a Board hearing in July 2014. The Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires the RO officials and Veterans Law Judge (VLJ) who conduct hearings to fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, both the RO officials and VLJ enumerated the issues on appeal at the beginning of the respective hearings, and asked questions to clarify the Veteran's contentions and treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings.
The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). VA's duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but "(A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability." 38 C.F.R. § 3.159(c)(4)(i); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) does not conflict with 38 C.F.R. § 5103A(d) and evidence of record "establishing that the Veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a Veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some causal connection between his disability and his military service").
For VA's duty to provide a medical examination to arise, all three elements above must be satisfied. The first element only requires consideration of whether there is evidence of a current disability, or persistent or recurrent symptoms thereof, and an assessment that the evidence is competent. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). To satisfy the second element, evidence of an event, injury, or disease in service, or manifestation within a presumptive period, "the evidence must establish that there was a disease, injury, or event in service." Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010). This element is a "classic factual assessment, involving the weighing of facts." McLendon, 20 Vet. App. at 82; Duenas v. Principi, 18 Vet. App. 512, 517 (2004) (noting that a medical examination could not aid in substantiating a claim where the record does not already contain evidence of an in-service event, injury, or disease). Where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required. Bardwell, 24 Vet. App. at 39. The third element, nexus, is a "low threshold" requiring only that a current disability "may be associated" with service. McLendon, 20 Vet. App. at 83. Competent evidence is required to establish a disability or symptoms of a disability, but not required to establish nexus, which only requires evidence that indicates an association between the disability and service or another service-connected disability. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010).
In this case, the Veteran was provided a VA low back and bilateral hip examinations in December 2013. The examinations are adequate as the examiner reviewed the Veteran's VA claims file, examined the Veteran in person, and provided opinions supported by rationale. Based on the foregoing, the Board finds the reports, in total, to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claims for service connection for lumbar spine and bilateral hip disabilities. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In contrast, an examination was not provided with respect to the cervical spine disability. As will be explained in greater detail below, evidence of a current cervical disability, or persistent or recurrent symptoms thereof, has not been found, thus such an examination is not warranted.
In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Merits of the Claims
To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155, 158 (1993).
Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2014). Arthritis is entitled to the chronic disease presumption under 38 C.F.R. § 3.309(a) if it manifests to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3).
If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology requires that the chronic disease have manifested in service. Id. In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2014). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court." Jandreau, 492 F.3d at 1377.
Although medical evidence is generally necessary for a nexus to service, lay evidence can also be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or, in some cases, as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but the Board can consider bias in lay evidence as well as conflicting statements and actions by the Veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).
The Board acknowledges that there may be more than one plausible interpretation of the competent and credible evidence of record. However, deference to the Board is appropriate where inferences are tethered to the evidentiary record. See Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) (citing Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 405 (2d Cir. 2005) ("Without some specific evidence concerning practices in China, the IJ's [immigration judge] conclusion . . . is speculative." )). Finally, "[t]he evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder." Bastien v. Shinseki, F.3d 1301, 1306 (Fed. Cir. 2010).
A. Low Back, to include Lumbosacral Strain and Degenerative Arthritis, and Bilateral Hip Disability
The Veteran contends that he is entitled to service connection for a low back and bilateral hip disability. The Board recognizes that the Veteran presently has these disabilities. The Board, therefore, must only consider the in-service incurrence or aggravation of a disease or injury and nexus elements while evaluating the overall issue of service connection.
In July 2014, the Veteran testified before the Board about the conditions of his service as an infantryman. Primarily the Veteran testified about his time in Korea, including long ruck marches carrying heavy equipment, low quality boots, and the fact that he regularly sought medical care that was not documented because the care occurred while he was in the field. The Veteran also testified about the intimidation he faced in seeking medical care while in service, and asserted that the intimidation explains the lack of annotations regarding lumbar and thigh flexion issues in the Veteran's service treatment records (STRs).
The Veteran's STRs document that he sought treatment for various conditions during service, but there is no evidence of a complaint or finding of low back or hip pain. The Board, however, has examined the Veteran's medical records and concluded that the existence of treatment for other conditions is not necessarily inconsistent with the Veteran's explanation of the lack of STRs regarding low back and hip pain. The Board recognizes that certain conditions would necessarily require medical attention, even in the face of intimidation, whereas others may not.
The Board, however, does find facial plausibility and internal consistency issues regarding the Veteran's explanation and his July 1974 Chapter 13 Report of Medical History (RMH) prior to discharge. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Specifically, the Veteran noted seven conditions on his RMH that occurred during or prior to service, including dizziness, chronic colds, shortness of breath, broken bones, recent gain or loss of weight, depression or excessive worry, and nervous trouble. The Board finds it internally inconsistent that the Veteran would list these seven previous conditions, but not list low back or hip pain. Further, the Board finds it facially implausible that the Veteran would feel intimidated to list back and hip conditions in a report of medical history that preceded his discharge, and even more improbable considering the seven conditions the Veteran did annotate. The Veteran specifically refrained from selecting "recurrent back pain" on his RMH, and also selected "no" in answering, "[h]ave you ever had any illness or injury other than those already noted?" Furthermore, post service medical records do not document low back or hip complaints for more than 30 years after discharge from service.
While human memory may cause insignificant errors, in this case, the significant inconsistency between, and implausibility of, the Veteran's statements and the RMH suggests more than a misremembering of the minutiae. The Board finds that the Veteran is an unreliable historian as to these facts, and also recognizes that the Veteran has an inherent interest in the outcome of his claim. The combination of inconsistency, implausibility, and bias, undermines the Veteran's assertions of an in-service incurrence or aggravation of a low back or hip disability. Consequently, the Board finds the Veteran's lay evidence regarding an in-service incurrence or aggravation not credible, and because the Veteran's testimony is the only evidence of the in-service diseases or injuries, the Board consistently finds no in-service disease or injury.
Further, in December 2013 VA provided the Veteran a VA examination of his low back and hip specifically for the purpose of determining if the Veteran's current low back and hip disabilities are related to service. The VA examiner reviewed the Veteran's service treatment records, VA medical records, and examined the Veteran. The examiner found degenerative disk disease (DDD) of the lumbar spine, with associated daily pain, limited range of motion (ROM), functional loss and impairment after repetitive use, abnormal gait, and arthritis. The examiner also found chronic bilateral strain of the hips, with associated daily pain, limited ROM, functional loss and impairment, localized tenderness and pain, without arthritis.
Following the above examination results, the VA examiner did not find a nexus between the Veteran's service and his current disabilities. The examiner, using medical expertise, concluded the current disabilities were less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the VA examiner stated that the Veteran's low back disability was more likely a part of generalized degeneration due to age, and that his hip disability was more likely a part of generalized degeneration due to wear, tear, and age. The Board recognizes that the VA examiner based these nexus opinions partially on the Veteran's lack of acute or chronic back or hip conditions in the Veteran's STRs, facts the Veteran subsequently explained to the Board. However, by the same credibility analysis above, the Board finds the Veteran's nexus explanation not credible, and therefore has evaluated, and accepts, the VA examiner's opinions as offered. Because the Veteran has been found not credible, the Board foregoes analysis of the Veteran's competence to provide lay nexus testimony regarding a lumbosacral strain and bilateral hip condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
In light of the VA examiner's expert opinion, and the Veteran's statement inconsistencies and bias, the Board finds the VA examiner's medical opinion more probative than the evidence presented by the Veteran. The Board, therefore, does not find a nexus between the Veteran's lumbar and bilateral hip disabilities and his active duty military service.
The Board finds that the preponderance of the evidence is against a finding that the Veteran had an in-service incurrence or aggravation of low back or hip injury. The Board also finds that the preponderance of the evidence is against a finding of nexus between the Veteran's low back and hip disabilities and his active duty military service. The most probative evidence is the December 2013 medical opinion by the VA examiner. Because the in service incurrence or aggravation, as well as nexus requirements, have not been met, service connection is not warranted. 38 C.F.R. § 3.303.
As mentioned above, the VA examiner found arthritis associated with the Veteran's lumbosacral strain. Arthritis is entitled to the chronic disease presumption under 38 C.F.R. § 3.309(a), however, the arthritis must manifest to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). As there is no evidence of arthritis manifestation in service or within one year of service, the Board concludes that analysis under 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) is not required.
Since the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claims are denied.
B. Cervical Spine, to include Cervical Strain
The Board notes that the Veteran is competent to report his symptoms and observations. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges that the Veteran has reported cervical issues in a May 2009 telephone triage report, as well as an April 2010 medical history of neck pain. However, of particular note, both of these statements by the Veteran precede the Veteran's February 2012 claim.
The Board considers the diagnosis of a cervical spine disability, to include a cervical strain, beyond its own competence to evaluate based upon its own knowledge and expertise. It follows that the Veteran's lay diagnosis of a cervical disability is also not competent evidence, although the observed symptoms described may be useful to an expert in evaluating the Veteran's condition. See Jandreau v. Nicholson, 492 F.3d 1372 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Because the record does not indicate that the Veteran has medical expertise, the Veteran's lay opinion that he has a cervical spine disability is of no probative value.
Having considered the Veteran's reports of cervical symptoms and his observations, the Board finds the annotations in the Veteran's medical record which are evidence of normal cervical function more probative. Especially persuasive are the four separate annotations in the Veteran's medical record which show either full range of motion (ROM) of the neck, or no history of neck issues. Of particular note, two of the annotations reporting full ROM occurred in 2014, roughly two years after the February 2012 claim.
The Board acknowledges the Veteran's reports of neck pain. However, pain by itself is not a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Here, there is no evidence in the record of a competent diagnosis of a current cervical disability. Therefore, service connection is not warranted for cervical pain alone. Because there is no competent evidence of a current cervical disability, the preponderance of the evidence is against a finding that the Veteran has a current cervical disability.
For these reasons, the Board finds that the first Shedden element, a present disability, is not met, and service connection for a cervical disability is therefore not warranted. 38 C.F.R. § 3.303; see Brammer v. Derwinski, 3 Vet. App. 223 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (a symptom or a finding, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted).
Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.
ORDER
1. Entitlement to service connection for disability of the low back, to include lumbosacral strain and degenerative arthritis, is denied.
2. Entitlement to service connection for bilateral hip disability is denied.
3. Entitlement to service connection for cervical strain is denied.
REMAND
The Veteran asserts that he has disabilities of the left elbow, left wrist, as well as COPD, which are attributable to his service. Medical opinions are necessary for VA to make a decision in this case, therefore, under 38 C.F.R. § 3.159(c)(4), VA has a duty to assist by providing medical examinations regarding the above disabilities. See 38 C.F.R. § 3.159(c)(4).
A. Left Elbow and Wrist
The Veteran asserts that he is entitled to service connection for left elbow and wrist disabilities.
In the May 2012, rating decision the RO denied the Veteran service connection for his left elbow and wrist based on the lack of current diagnoses and in service event, disease or injury.
The Board however, recognizes that there is evidence of these disabilities in the Veteran's VA medical records, specifically, a diagnosis of tennis elbow in July 2009, tendonitis of the elbow in October 2009, the prescription of a left wrist splint in July 2009, and an annotation of carpal tunnel in the Veteran's left wrist in October 2009. Additionally, as described above, in July 2014 the Veteran testified before the Board about the challenging physical conditions during his service and the intimidation he faced in seeking medical care. The Veteran offered this testimony as evidence of his in service injury as well as explanation for the lack of notations in his STRs.
While the above evidence is not enough for the Board to service connect the Veteran's disabilities, the Board finds that there is evidence of a current disability, as well as evidence of an in service event, disease, or injury, as required under 38 C.F.R. § 3.159(c)(4). Finally, the Veteran meets the "low threshold" that a current disability "may be associated" with service. McLendon, 20 Vet. App. at 83. Given this new evidence, not all of which was previously of record with the RO, an examination and opinion considering the additional evidence is needed. 38 C.F.R. § 3.159(c)(4).
B. COPD
The Veteran asserts that his current COPD disability began in service. The Veteran argues that his current COPD is a result of polluted dust clouds that descended upon Korea at various times while he served there. In July 2014, the Veteran offered testimony regarding the clouds, and in October 2014 the Veteran submitted multiple articles from the internet, as well as academic journals, which discuss the nature of the relationship between these dust events and COPD.
The Board notes that the RO acknowledged that the Veteran is diagnosed with COPD, but stated that it was not incurred or caused by service. The Board concurs with the RO's recognition of a present COPD diagnosis. The Board, however, also acknowledges that the Veteran's RMH annotated that he experienced shortness of breath during service. Shortness of breath is one of the main symptoms of COPD. The Board, therefore, finds that the Veteran has provided evidence of a present disability as well as an in-service incurrence or aggravation of a disease or injury. Shedden, 381 F.3d at 1167. Additionally, the Veteran meets the "low threshold" that a current disability "may be associated" with service. McLendon, 20 Vet. App. at 83.
Accordingly, this case must be remanded to provide the Veteran a VA examination to determine if a causal relationship exists between the present disability and the disease or injury which was possibly incurred or aggravated during service. In offering a nexus opinion the VA examiner should take special consideration of the Veteran's lay statements and the COPD related articles submitted to the Board which are now part of the claims file.
The records of continuing VA medical treatment are dated up until October 21, 2014. The Veteran's updated VA treatment records should be obtained. 38 C.F.R. § 3.159(c)(2) (2014).
Accordingly, the case is REMANDED for the following action:
1. Obtain the Veteran's VA treatment records dated from October 22, 2014, to present.
2. After the above action has been completed, afford the Veteran a VA elbow and wrist medical examination. The opinion should determine the nature, extent, and onset of any existing elbow and wrist disabilities, or elbow and wrist disabilities which existed during the pendency of this claim. If a current disability exists, or existed during the pendency of this claim, the opinion should determine the disability's etiology. The claims folder must be made available to the examiner, and the examiner must specify in the examination report that the claims file was reviewed.
The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that any elbow or wrist disability is related to service. The VA examiner should, in particular, discuss the lay statements of the Veteran, including the conditions of his service as an infantryman in Korea.
The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a disability exists or existed, or a nexus exists.
3. Afford the Veteran a VA COPD medical examination. The opinion should determine the nature, extent, onset, and etiology of the Veteran's current COPD. The claims folder must be made available to the examiner, and the examiner must specify in the examination report that the claims file was reviewed.
The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's current COPD disability is related to service. The VA examiner should, in particular, discuss the documents submitted by the Veteran regarding the relationship between Korean peninsula dust events and COPD, as well as the lay statements of the Veteran.
The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.
Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between service and the currently diagnosed COPD.
3. Upon completion of the above requested development, conduct any other development that is deemed warranted and readjudicate the Veteran's claims. If the benefits sought on appeal are denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs